1. MANAGING AND MONITORING TEMPORARY INCAPACITY IN THE INITIAL 365 DAYS
Order 1187/2015 of 15 June develops Royal Decree 625/2014 of 18 July and regulates aspects of managing and monitoring temporary incapacity in the initial 365 days
Order 1187/2015 of 15 June develops Royal Decree 625/2014 of 18 July.
The amendments to Royal Decree 625/2014 (the “RD”) chiefly relate to the issuing of a medical certificate for leave, extension of medical leave and fitness to return to work. In particular, a protocol has been established to estimate the duration of the temporary incapacity for each case. The duration will be decided by the doctor in his/her expert opinion and also be based on charts setting out the normal duration of the incapacity, the type of employment and person’s age.
The amendments to the RD entail new mechanisms, such as new types of medical certificates.
In accordance with the protocol, medical reports must be issued immediately after the medical examination.
After the doctor issues the final extension of medical leave prior to the initial 365 days, the employee must be informed that the National Social Security Institute will from that point on monitor the case. In cases of more than 30 calendar days, whatever the circumstances, the second extension of medical leave must be accompanied by a supplementary medical report from the doctor who issued the extension of medical leave.
The new medical reports will be used in cases of ongoing temporary incapacity lasting less than 365 days at the date of this Order.
This order will become effective on the first day of the sixth month following publication in the Official State Gazette, that is, 1 December 2015.
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2. EXTENSION OF THE TERM FOR TRAINING AND APPRENTICESHIP CONTRACTS TO FULFIL THE MINIMUM PROVISIONS
Order 1249/2015 of 19 June extends the term established in Law 3/2012 of 6 July on urgent measures to reform the labour market applicable to training and apprenticeship contracts
Law 3/2012 of 6 July on urgent measures to reform the labour market, as amended by the second final provision of Royal Decree-Law 16/2014, provides that if no professional training qualification or certificate exists for the work to be carried out or there are no training centres for training or apprenticeship contracts signed by 30 June 2015, the training activities for these contracts will consist of the minimum provisions set out for these purposes on the Public Employment Service’s website and by the Public Employment Services of each autonomous region. Otherwise the companies themselves will decide on the training to be given.
Order 1249/2015 states that the deadline of 30 June 2015 can be extended to 31 December 2015.
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3. SOCIAL SECURITY NOTICE BOARD
Order 1222/2015 of 22 June regulates the purpose and aspects of the Social Security Notice Board
The Social Security Notice Board publishes the announcements, agreements, resolutions and communications issued by the Social Security and any other related information of interest pursuant to the Consolidated Text of the General Social Security Law, approved by Royal Legislative Decree 1/1994 of 20 June. Publications on the Social Security Notice Board are considered official and authentic notifications under the rules and conditions set forth in Order 1222/2015, which entered into force on the same date it was published in Spain’s Official State Gazette (24 June 2015).
The Social Security Notice Board can be freely accessed at all the social security’s offices.
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4. III AGREEMENT ON EMPLOYMENT AND COLLECTIVE BARGAINING FOR 2015, 2016 AND 2017
Directorate General of Employment decision of 15 June 2015, which publishes the III Agreement on Employment and Collective Bargaining for 2015, 2016 and 2017
The III Agreement on Employment and Collective Bargaining for 2015, 2016 and 2017 was signed on 8 June 2015 by the Spanish Confederation of Businesses (CEOE), trade unions (specifically, the CCOO and UGT) and the Spanish SME Confederation (CEPYME).
Collective bargaining agreements signed between 2015 and 2017 must establish the following as their main objectives:
(i) Generating and maintaining employment.
(ii) Promoting stable employment and reducing the use of temporary contracts.
(iii) Developing means to help companies adapt to changes in production.
(iv) Maintaining and improving companies’ market positions and productivity.
(v) Ongoing professional qualifications and skills development.
(vi) Complying with the rules on equal treatment and non-discrimination in the workplace, and promoting equal opportunities between women and men.
(vii) Incorporating advances in IT and communications to improve productivity and employment relations.
To achieve this, collective bargaining agreements must take into account training and professional qualifications, corporate restructuring, right to information and consultation, equal treatment of women and men, health and safety at work, salary structures and wage increases, additional benefits, flexibility in working conditions, classification of posts and functional mobility, working time, derogations from collective bargaining agreements, teleworking, temporary incapacity, absenteeism, the renegotiation of collective bargaining agreements and their application after the initial term has expired, joint committees and dispute resolution.
The Agreement states that collective bargaining agreements must promote permanent contracts and adopt ways to encourage the hiring of young people. It also encourages the inclusion of provisions in collective bargaining agreements that allow companies to temporarily suspend contracts and reduce working time to overcome short-term difficulties without making employees redundant.
In this context, salaries should be increased by up to 1% in 2015 and 1.5% in 2016. The recommended salary increase for 2017 will be determined on the basis of the gross domestic product in 2016 and the government’s macroeconomic forecasts for 2017.
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5. ENFORCEMENT LIMITATION PERIOD BEGINS WITH THE REQUEST FOR PAYMENT
Judgment of the Supreme Court dated 24 December 2014
The Supreme Court has held that the first day of the limitation period for claiming payment of damages is the date payment is requested.
This issue concerns the interpretation of article 576.1 of the Civil Procedure Law and, in particular, the date the period for enforcing a an award for damages begins when the amount deposited with the court as security is insufficient to cover the principal and interest owed.
The High Court of Castile-Leon held that the period to seek enforcement is one year and begins only when payment of the principal amount is requested.
Once enforcement is sought, the procedure is regulated by article 239.2 of the Labour Courts Law. There is no new period to claim payment of interest, which can be claimed at any time once the enforcement period begins.
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6. THE EMPLOYER MAY NOT RESCIND A DISMISSAL WITHOUT THE EMPLOYEE’S AGREEMENT
Supreme Court judgment dated 20 November 2014
The legal issue in this case concerned the effects of an initial dismissal notice with procedural defects and a subsequent dismissal notice from the employer to avoid the consequences of the defects in the first notice.
The Supreme Court (“SC”) held the second dismissal to be a valid protective mechanism. In particular, if the first dismissal was not made judicially firm and final; article 55.2 of the Statute of Workers confirms the validity of a second dismissal notice as a useful protective instrument.
However, the SC also stated that the second notice did not remedy the first notice and that the employer could not cure the defects in the first dismissal.
The SC found that the employee’s claim could be filed even after the second dismissal occurred. The SC held that the employer was not entitled to unilaterally modify the first dismissal without the employee’s agreement.
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7. STANDING OF A COMPANY’S EMPLOYEES TO CHALLENGE A COLLECTIVE DISMISSAL
Supreme Court judgment dated 23 March 2015
The Supreme Court (“SC”) has recognised the right of company employees to challenge the collective dismissal negotiated by them directly.
The company had 17 employees without a union representative. The company announced its decision to initiate a procedure for collective dismissal, providing the appropriate documents for negotiation.
At the first meeting, the employees were informed that they could opt to establish an ad hoc committee, which they rejected in preference for negotiating directly with the company. The company failed to inform the employees of the consequences of not electing representatives.
The negotiation period ended without agreement and the company individually notified 13 employees of their dismissal.
The SC clarified that employees may choose to negotiate directly with the employer or negotiate through representatives. Although the legislation states that the negotiation must be carried out by a committee of no more than three members, in this case, all the employees negotiated.
The SC stated that less favourable protection to some employees could not be permitted, as opposed to others (employee representatives). All the employees have legitimacy pursuant to article 124 of the Labour Courts Law.
The SC pointed out that its decision did not imply the possibility of freely replacing the legal ad hoc committee with direct negotiation by employees in all cases. Only in the specific circumstances of this case, could evasion of labour law not be claimed regarding the negotiations. This was due to the employees’ unanimity and limited number.
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8. AN EMPLOYEE REPRESENTATIVE MAY LACK LEGAL STANDING TO CHALLENGE A COLLECTIVE DISMISSAL
The Supreme Court judgment dated 25 February 2015
The company notified the beginning of a negotiation period to terminate 114 employee contracts. The negotiations were held with the unions that most employees belonged to. The negotiation period ended in an agreement, whereby among other measures, there would be a severance payment of 33 days’ per year of service with no upper limit and all terminations would be voluntary.
The employee representatives, specifically the applicant and the other two employee representatives, were notified of the agreement.
The Supreme Court (“SC”) reiterated the employee representative’s lack of standing to challenge the collective dismissal in any procedural action, pursuant to article 62.2 of the Statute of Workers. In particular, article 62.2 states that “employee representatives act jointly before the employee to carry out the duties they were elected for and have the same powers as workers’ committees.”
In order for employee representatives to carry out their duties, the three representatives must be in agreement. The SC held there to be a lack of standing to challenge the collective dismissal without the majority agreement of the other two representatives agreement.
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9. COLLECTIVE DISMISSAL DECLARED VOID DUE TO ESSENTIAL DEFECTS IN SETTING UP THE NEGOTIATING TABLES
The Supreme Court judgment dated 27 January 2015
The Supreme Court (“SC”) judgment declared the collective dismissal void because there were defects in setting up the negotiation procedure.
The collective dismissal involved 80 employees, and subsequently the suspension of 56 other six-month contracts for economic reasons.
The Labour Chamber determined that it had jurisdiction to hear the case, although the company was declared insolvent because of the previous collective dismissal.
The nullity of the collective dismissal was based on the negotiating defects. In particular, the irregular establishment of numerous hybrid tables to negotiate where no legal representative of the participants could be evidenced.
The company contended that during this period of time the collective dismissal was valid under article 26 of Royal Decree 1483/2012, which permits negotiating with different tables for each work centre.
The SC ruled that it is a different matter to negotiate with different tables (parties) when the employees are represented by a committee or employee representatives. It is a completely different issue to negotiate with multiple tables where employees are represented by various components without employee representatives. This results in several offers and counteroffers, making negotiation and a decision impossible. For these reasons, the SC held the collective dismissal to be void.
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10. TERMINATION OF EMPLOYMENT DUE TO A PRISON SENTENCE
Judgment of the High Court of Justice of Galicia dated 10 April 2015
Both parties to a claim lodged an appeal against a first instance judgment that ruled in the employer’s favour by holding that an employee had abandoned his post.
The appeal before the High Court of Justice of Galicia (“HCJG”) centred around whether the claimant’s abandonment of his employment due to his prison sentence gave rise to the termination of his employment contract as set out in the first instance judgment, or whether the employer’s termination of the employment contract was unfair as the employee did not declare his willingness to withdraw from his employment contract or abandon his post.
The HCJG considered the first instance judgment to have correctly interpreted article 49.1 of the Statute of Workers as the employee had abandoned his post. Nevertheless, it also acknowledged that the employer took the decision to terminate the employee’s contract hastily, given that it did so when the employee had been absent from work for only two days.
The HCJG held that a prison sentence is a valid reason for an employee to consider an employee unable to resume his position. The HCJG also considered the employee’s abandonment of his position to be wilful, given the failure to inform his employer of the prison sentence. The HCJG therefore decided the employee had breached the covenant of good faith.
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11. LEGALITY OF THE TEMPORARY INSTALLATION OF CAMERAS, INFORMING THE CHAIR OF THE WORKERS’ COMMITTEE, BUT NOT THE EMPLOYEES
Judgment of the High Court of Justice of Madrid dated 9 February 2015
The High Court of Madrid (the “HCJM”) ruled that the temporary installation of cameras on legitimate suspicions of theft by employees was legal in this case. The chair had been informed that the cameras would be installed, although the employees had not.
The HCJM found there to be short, episodic recordings due to suspicions of an employee stealing clothes and other items.
After a few days’ monitoring, the company’s suspicions were confirmed. The employee had breached the employment contract, namely on the grounds of the theft of items of clothing and accessories. The monitoring was carried out by a professional detective agency.
In the circumstances, the HCJM considered it impracticable for the company to inform all employees prior to installing the cameras. It would have been necessary to explain the circumstances in which the recordings could be examined, for how long, the purpose behind them, and that they could be used to impose disciplinary sanctions. The company informed the chair, but not the entire board as one of the members was suspected of being responsible for the theft and the workers’ committee’s competences extend to the “implementation and revision of organisation systems and monitoring work” pursuant to article 65.5 f) of the Statute of Workers (the “SW”).
Moreover, the HCJM found that the company’s actions had a legal basis under articles 20.3, 54 and 58 of the SW and also a constitutional basis on the grounds it is related to the employer’s right to justify the measure adopted, which in this case was the employee’s dismissal.
The measure the company adopted complies with the three requisites established by the Constitutional Court: (i) it is appropriate for the objective; (ii) it is a necessary measure; and (iii) it is well-considered and balanced in the general interest to avoid conduct going unpunished as opposed to the lesser harm of the data treatment. The investigation was outsourced to a professional company and the chair of the workers’ committee was informed prior to the monitoring.
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1. MANAGING AND MONITORING TEMPORARY INCAPACITY IN THE INITIAL 365 DAYS